Senate Holds First Hearing of the 112th Congress on TSCA Modernization

Beveridge & Diamond, P.C., February 15, 2011

Overhaul of the Toxic Substances Control Act (TSCA) continues to be a hot issue. On February 3, 2011, Senator Frank Lautenberg (D-NJ) held the first TSCA hearing of the 112th Congress.1 A main theme promoted by all of the witnesses and attending Senators was that TSCA reform is still possible despite the results of the last election.2 However, the other issues discussed at the hearing made clear that despite stakeholder agreement on generalities, disagreements over important details still need to be resolved.

Legislative Statements

Senator Lautenberg’s opening statement built on points he has made over the years regarding various reasons for TSCA reform and the level of stakeholder consensus on the need for TSCA reform. Several of the minority statements, on the other hand, contributed new ideas and sets of principles that are likely to shape future negotiations. Senator David Vitter (R-LA) described the six overarching principles that he has been promoting:

The TSCA Inventory of existing chemical substances should be updated, since there are far fewer chemicals in significant commerce (according to Vitter, probably a quarter) than the 84,000 that are listed.

A program styled after the European Regulation on Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) would threaten to kill innovation in the U.S. and hamstring small and medium size manufacturers in particular.

It is premature to assume that REACH is the future. REACH could actually impair human health and safety by impeding the introduction of safer alternatives into the marketplace.

Studies relied on by EPA for limiting particular chemicals must be reproducible and proven.

The peer review process must be absolutely independent, and studies must not be “cherry-picked” by “activists” within agencies.

If EPA is going to use resources to re-review a chemical prior to an established timeframe, it must use sound and not politicized science. (This principle refers to EPA’s reevaluation of the pesticide atrazine, which is regulated under the Federal Insecticide, Fungicide, and Rodenticide Act rather than under TSCA.)

Senator Vitter’s principles echo to some degree the principles offered by Ranking Member Senator James Inhofe (R-OK), who did not attend the hearing but who submitted a written statement. According to Senator Inhofe, TSCA reform must: 1) be based on the best available science; 2) use a risk-based standard for chemical reviews; 3) include more rigorous cost-benefit requirements; 4) protect proprietary information; 5) reduce the likelihood of litigation; 6) avoid compelling product substitution; and 7) prioritize reviews for existing chemicals. These principles essentially mirror those offered by Senator Inhofe in late 2009.3

Witness Testimony

All six witnesses testified in support of TSCA modernization. Steve Owens, Assistant Administrator of EPA’s Office of Chemical Safety and Pollution Prevention (OCSPP), mainly reiterated prior testimony on TSCA’s flaws and their impacts. As in previous hearings, he summarized the Administration’s principles for TSCA reform.

Kelly Semrau, Senior Vice President for Global Corporate Affairs, Communication, and Sustainability for S. C. Johnson & Son, Inc., described her company’s global sustainability programs and support for modernizing TSCA. While S. C. Johnson “view[s] TSCA first and foremost as a chemical statute, and not a product-based statute,” Ms. Semrau said the company would benefit from TSCA modernization to the extent it would increase consumer confidence, increase information for ingredient evaluation, discourage inconsistent state initiatives, and keep pace with global developments. Ms. Semrau highlighted several critical issues, including balancing transparency with protection of confidential business information (CBI).

Steve Goldberg, Vice President and Associate General Counsel for BASF Corporation, a subsidiary of the world’s largest chemical company, first highlighted “what TSCA does right,” including the protection of CBI. This topic of what works in TSCA received additional attention during questioning. Mr. Goldberg then described reasons for TSCA modernization, focusing on advances in science and technology. Finally, he analyzed a number of “commonalities” in the principles set forth by industry groups and NGOs, especially highlighting the need to avoid a multiplicity of state and local laws, the framework for a risk-based standard, and the need to provide EPA with adequate resources to ensure the success of a modernized TSCA.

Frances Beinecke, President of the Natural Resources Defense Council (NRDC) (a member of the Safer Chemicals, Healthy Families campaign and the Blue Green Alliance), focused on obtaining information on chemicals in the context of chronic illnesses. She referenced public opinion research showing that chemicals management has bipartisan public support. Like other witnesses, she noted the proliferation of state and local chemical requirements as well as retailer and formulator policies, arguing “that trend is likely to continue” without strong federal action. She also cited recent chemical laws in other countries and regions including the EU (REACH), Japan, China, Canada, Taiwan, South Korea, and Israel. Ms. Beinecke’s written testimony also cited recent reports by the National Academy of Sciences regarding EPA’s toxicology and risk assessment methods.4

Cal Dooley, President of the American Chemistry Council (ACC), spoke about the importance of chemistry and innovation to reaching goals including job growth, clean energy, improved infrastructure, efficient transportation options, medical advancements, and sustainable global improvements in living standards. These factors raise the stakes for getting TSCA reform right, Mr. Dooley argued. He then offered suggestions for doing just that, reiterating the ten principles proposed by ACC in August 2009, which were attached to his written testimony.

Finally, Dr. Lynn Goldman, Dean of the George Washington University School of Public Health and Health Services and former EPA Assistant Administrator for Prevention, Pesticides and Toxic Substances (the predecessor to OCSPP), offered her views. Dean Goldman explained opportunities for change in areas such as information gathering, protection of vulnerable populations, prioritization, risk management, precaution and burden of proof, right to know, and green chemistry. She also submitted for the record a paper she co-authored for the American Bar Association entitled “Practical Advice for TSCA Reform: An Insider Perspective,”5 in which she and several other former EPA senior officials offer “observations and cautions about select elements of the debate heard thus far.”

Major Themes

Impact of the 2010 elections on prospects for legislation.

Senator Lautenberg, who introduced TSCA legislation in the 109th, 110th and 111th Congresses, indicated that he is “committing to moving TSCA reform legislation in this Congress.”

While directly acknowledging that the political landscape has “shifted somewhat,” Senator Lautenberg noted that other environmental laws such as the Safe Drinking Water Act and the Food Quality Protection Act passed in previous Republican-dominated Congresses, and asked his Republican colleagues for serious dialogue. He asked all of the witnesses if they thought that legislation could pass this Congress, and they all said that they did. Ranking member Senator Inhofe (R-OK), who did not appear at the hearing, submitted a statement that emphasized the need for “a bill that can pass both the House and the Senate.” Thus, bipartisanship appears to be recognized as necessary.

Industry participation was also widely acknowledged as necessary for TSCA legislation to advance in this Congress. Senator Lautenberg asked Cal Dooley, the CEO of ACC, whether ACC would share its ideas on how to create a workable chemicals management system, and Mr. Dooley agreed that ACC would do so.

Impact of TSCA reform on the economy.

Nearly all of the attending Senators, and all of the witnesses, addressed protecting jobs and the economy as an important issue.

The economic debate also looked to international reference points. Senator Lautenberg asked about companies doing business in Europe or selling into Europe which are making “record profits.” He may have been implying that the REACH model can be adapted for the United States without significant negative impact on businesses. Mr. Dooley, however, observed that REACH is still in its infancy, and argued that legislators and NGOs should resist assuming that the U.S. chemicals management program is “falling behind” until the accomplishments of REACH can be better evaluated.

Actions at the state and local level to regulate chemicals.

Senator Lautenberg and witnesses cited recent reports that legislators in thirty states are planning to introduce chemicals legislation this year.6 Several witnesses identified conflicting state laws as a reason for a stronger federal TSCA. However, witnesses and several of the Senators in attendance were divided on whether a preemption provision is needed, or whether it would be sufficient for a strengthened TSCA to reduce the impetus for most state chemical laws by restoring public confidence.

CBI and transparency.

Both Senator Lautenberg and Steve Owens from EPA acknowledged that some information claimed as CBI should be protected. Ms. Semrau, from S. C. Johnson, endorsed the concepts of sharing CBI with state and foreign governments under appropriate restrictions, up-front substantiation of CBI claims, and time limits on CBI claims.

It may be noteworthy that Senator Inhofe’s statement for the record indicated that “if we can't get the votes we need for a comprehensive solution, then we may have to consider alternative legislative options to address specific issues that might have broader bipartisan support.” In light of an apparent emerging consensus on treatment of CBI, CBI may be just such an issue.